Background
Thomas Wayne Birdsong owns an 80-acre tract in Claiborne Parish. Under a 2018 Surface Use Agreement tied to a 1945 mineral lease, Rosestone Operating Company, NR Resources, and CAPX Ventures Fund 2 could use the property for oil-and-gas operations in exchange for annual rent and compliance with maintenance and waste-control obligations.
After the defendants failed to pay the rent due in 2024, Birdsong sued in February 2025 to terminate the agreement, evict them, and recover damages relating to abandoned tanks, contamination, and trespass. The defendants later tendered the overdue rent, but Birdsong rejected it. Following notices to vacate and a federal-court removal and remand, the district court found that the defendants had breached the agreement and ordered them to leave on 24 hours’ notice.
The Court’s Holding
The Louisiana Second Circuit affirmed. It held that the trial court was not manifestly erroneous in granting eviction for nonpayment because Birdsong had never accepted rent five months late, consistently treated the nonpayment as a default, rejected the post-suit tender, and continuously pursued termination and possession. His prior acceptance of payments one or two weeks late did not establish waiver of the much longer default.
The court also held that the Surface Use Agreement qualified as a lease because it allowed the defendants to use the property in exchange for annual rent. Even if it were not a lease, summary eviction remained available because the defendants were occupants whose right to remain ended when they failed to pay. The court rejected the defendants’ procedural exceptions because the trial court bifurcated the summary eviction from the ordinary damages claims, the defendants were the only current occupants, and they introduced no evidence supporting lis pendens or showing prejudice.
The court found that Birdsong supplied the required written notice to vacate more than five days before filing the eviction motion and affirmed the $50,200 attorney-fee award under Louisiana’s eviction statute. It denied Birdsong additional appellate fees because he requested them only in his brief and did not answer the appeal. Chief Judge Pitman dissented without elaborating beyond stating disagreement with the majority’s reasoning.
Key Takeaways
- A history of accepting rent one or two weeks late did not waive the owner’s right to enforce a default involving a five-month delay and a rejected post-suit tender.
- A surface-use agreement exchanging access to land for annual rent can constitute a lease subject to Louisiana’s summary-eviction procedure.
- An appellee seeking additional attorney fees for appellate work must answer the appeal as required by Louisiana Code of Civil Procedure article 2133; a request in the appellate brief alone is insufficient.
Why It Matters
The decision confirms that Louisiana landowners may use summary eviction to recover possession from oil-and-gas operators whose contractual occupancy rights have ended, even when related damages and contamination claims remain pending in an ordinary proceeding.
It also illustrates the limits of waiver based on accepting late rent and underscores two procedural points: parties opposing eviction must support their exceptions with evidence, and appellees must properly answer an appeal to obtain additional appellate attorney fees.